Succession of Guillebert

63 So. 237 | La. | 1913

Lead Opinion

SOMMERVILLE, J.

This succession, in several phases, has been before us as reported in 107 La. 614, 32 South. 238, 117 La. 371, 41 South. 653, 117 La. 372, 41 South. 654, and 126 La. 992, 53 South. 117. The last appeal referred to involved the correctness of the account of the tutrix and her cotutor, which was being opposed by the daughter of the tutrix, Mrs. Adele Guillebert Barbin. We remanded the case to the district court for further proceedings, with instructions to the tutrix and cotutor to file a full and complete tutorship account, connected and in detail, showing amounts received by them and the dates on which received, the amounts paid by them, and the dates on which paid, as accurately as possible, and that the opponent make specific objections to whatever items on said account she objected to, stating the grounds of objection to each item, and setting forth definitely and particularly, with date and amount, whatever other matters she might have to urge against the correctness and fullness and completeness of the said account of tutorship, with leave to each party to introduce further evidence.

The account has been filed, and it has been opposed. There was a judgment in which the account was recast by the trial judge; from that judgment the accountants, the tutrix and cotutor, have appealed. Mrs. Bar-bin, opponent, has answered the appeal, and asks that the judgment be amended.

Opponent asks for an amendment of the judgment appealed from in five particulars: (1) An increase of $3,341.63, in the hands of the commission merchant of the deceased at the time of the latter’s death; (2) a credit of $1,228, the value of certain cotton inventoried as belonging to the succession, but most of which appears to have belonged to other persons; (3) $12,000, claimed to have been paid by the tutrix to Mrs. J. H. Boyer; (4) $1,000 for attorney’s fees for the prosecution of the alleged murderer of the deceased, Constant Guillebert; and (5) $7,500, which should have been collected under a compromise in the succession of Mrs. *605Camille Guillebert, wife of Boyer, and which should have been charged to the accountants.

On the oral argument, counsel for opponent waived the opposition as to the item No. 4, for $1,000 attorney’s fees.

With reference to the first, second, and third items, $3,341.63, $1,228 and $12,000, we expressed the opinion on the former hearing that these credits should have been allowed to the accountants; and, after a retrial of the cause and a re-examination of the evidence, we adhere to the opinion then expressed, and as now decided by the district judge.

[2] We have carefully re-examined the evidence connected with the item of $7,500, which the opponent claims should have been collected under a compromise of the accountants with J. A. Boyer, in the succession of his wife, Mrs. Catherine Guillebert Boyer; and, while we are still of the opinion that the claim is one in which the succession of Constant Guillebert is not concerned, we are also of the opinion that opponent has failed to show that this amount was lost through the fault of the accountants. The suit of the tutrix, on behalf of opponent and her sister, to have the will of Mrs. Boyer annulled, was filed by reputable attorneys of this bar, and it was compromised under the authority of a family meeting. The compromise seems to have been for $5,500, to be paid in cash by Mr. Boyer, and $2,000 rental for a small piece of ground. But the evidence is that Mr. Boyer refused to carry out the terms of this contract, and that nothing was collected from him. Mr. Peterman, of the firm of Thorp & Peterman, was the attorney of record. . Mr. Thorp is now dead, and Mr. Peterman, who was called as a witness, testified that Mr. Thorp attended to this particular business, and that he knew little or nothing about it. He further stated that Mr. Boyer had offered some bonds in settlement, but he did not know the amount, or any of the particulars. It further appears that Mr. Boyer gave a check or draft in settlement, but that it was not paid. Whereupon a second suit was instituted against him; but he agreed to make, and did make, a will in favor of opponent and her minor sister, and the matter'was dropped there. Mr. Boyer died about three years thereafter, having disposed of all of his property in his lifetime, so there was nothing for opponent and her sister under his will. The tutrix and cotutor tried to collect the sum due under the compromise with Boyer, and they failed, through no fault of theirs. They cannot therefore be held responsible for said amount. It was properly disallowed in the judgment of the district court.

[1] Turning now to a consideration of the appeal taken by the tutrix and cotutor from the judgment rendered, we have carefully examined the several objections made by them, but find that they are not supported by the evidence in the record, except as to the item of interest.

The trial judge has, with much care and thoroughness, recast the account, and based his judgment thereupon. Each item therein is sustained by the evidence, and there are only two or three errors in calculation, which do not amount to much.

We shall therefore take as a basis of this opinion the “Recapitulation of Recapitulations,” found at page 196 of the transcript, and formulated by the trial judge. It is as follows:

Recapitulation of Recapitulations.
Assets. Filed May 15, 1911.
Amount of the inventory........$51,207 57
Amount of rents collected.....15,625 00
Collections over the inventory
appraisement ................... 6,269 94
Interest on rents (less commission) ............................ 6,197 25
Interest from 1888 to 1904, inclusive ........ 20,026 34
- $99,326 10
*607Credits.
Lands on hand...................$ 4,050 00
Lands not redeemed............. 2,391 00
Debts paid, under account of 1886 .............................. 16,983 54
Deductions for errors, etc., under account of 1886............. 5,486 18
Debts paid, under account of 1890 .............................. 2,722 47
Deductions for errors, etc., under account of 1890............. 3,788 29
Debts paid since rendering account of 1890.................... 5,083 76
Deductions, etc., since rendering account of 1890............. 1,708 40
Commissions on rents and revenues at 10 per cent......... 1,562 50
Interest on debts paid since 1890 ............................. 1,615 85
- $45,391 99
Total amount due the two heirs, less amounts paid for them, and interest on same ................................ $53,934 11
Amount coming to Mrs. A. T. Barbin after deducting amounts paid for her board, maintenance, and education and interest on same less one-half of costs of these proceedings .........$22,956 05
Board, maintenance, and education....... 2,650 00
Interest on same..... 1,360 75 - $26,967 05
Amount coming to Camille Modestine Guillebert, after deducting amounts paid for support and medical treat- • ment and interest on same, less one-half of the costs of these proceedings .. $22,542 05
Support and medical attention ............ 3,000 00
Interest on same.....' 1,425 00 $26,967 05 $53,934 U

We find it necessary, in this connection, to recast the account to a certain extent, as the best way in which to express our findings; and we shall take therefrom the several interest items to be disposed of in another way and place.

We shall calculate interest in a separate account.

As the dates of receipts and disbursements are not accurately stated in the transcript in many particulars, this interest account cannot be made out with exactness, based upon the receipts and disbursements. It is therefore necessary to assume, for the purpose of calculating interest, where no dates are given, that receipts and disbursements (debits and credits) were substantially concurrent, and that the movable property included in the inventory was disposed of by the tutrix and cotutor, or converted into cash, before the end of the year 1890. The latter date gave the parties sufficient time in which to make collections; and they alone are at fault in not keeping correct data as to the dates when this property was realized upon. The rent' collections are debited in the account (that is, included in the receipts), at the end of each year, less 10 per cent, commissions. The amounts allowed for the maintenance of the heirs are credited in the account (that is, included in the payments), under the date of December 31st, in the years to which they belong. As already stated, interest will be eliminated in reviewing the “Recapitulation of Recapitulations” of the trial judge.

In the interest account interest will be calculated on the receipts (debits in the account) from the end of each year to April 17, 1905; and each year’s disbursements (credits in the account) are averaged for each year, to avoid a multiplicity of calculations, and interest is computed from the average due date (in the same manner as are debits in the account).

The balance of the interest to the debit of the accountants is $16,019.73, $5,803.06 less than is charged in the account prepared by the trial judge.

With reference to those items, where the year only is stated, December 31st is taken as the date for computing the interest; and, *609when the month only is given, the last day of the month is taken as the date.

The interest account follows:

Dr.
Principal Interest
1884.
Dec. 31. Receipts for year, taken from the transcript $ 584 91 $ 593 48
18S5.
Dec. 31. Do. Do., including rents, less 10 per cent, commission ........... 17,096 16 16,491 93
1886.
Dec. 31. Do. Do................. l',604 46 1,467 53
1887.
Dec. 31. Do. Do................. 1,528 36 1,321 50
1888.
Dec. 31. Do. Do................. 2,055 63 1,674 62
18S9.
Dec. 31. Do. Do................. 1,690 23 1,292 44
1890.
Dec. 31. Do. for the year, and all balance chargeable in inventory.... 19,093 89 13,645 59
1891.
Dec. 31. Rents, less 10 per cent.
commission ........... 675 00 448 64
1892.
Dec. 31. Do. Do................. 675 00 414 89
1893.
Dec. 31. Do. Do................. 675 00 381 14
1894.
Dec. 31. Do. Do................. 675 00 347 39
1895.
Dec. 31. Do. Do................. 742 50 345 01
1896.
Dec. 31. Do. Do................. 742 50 307 88
1897.
Dec. 31. Do. Do................. 742 50 270 76
1898.
Dec. 31. Do. Do.............. 742 50 233 64 $49,323 64 $39,236 44
Amounts brought forward.... $49,323 64 $39,236 44
1899.
Dec. 31. Do. Do................. 742 50 196 53
1900.
Dec. 31. Do. Do................. 810 00 173 86
1901.
Dec. 31. Do. Do................. 810 00 133 36
1902.
Dec. 31. Do. Do................. 810 00 92 86
1903.
Dec. 31. Do. Do................. 810 00 52 36
1904.
Dec. 31. Rents, less 10 per cent.
commission ........... 810 00 11 86
Interest to debit of accountant 16,019 73
Real estate per inventory $4,050 Pledged real estate, unredeemed .................... 2,391 - 6,441 00 $76,576 87 $39,897 25
Or.
Principal Interest
Average due date
1884.
Dec. 26. Disbursements allowed
1885. by JudSmeilt .........$ 584 91 $ 593 87
Oct. 22. Do., including maintenance of heirs........ 16,511 16 16,085 93
1886>
Sept. 14. Do. Do................. 1,019 46 947 53
1887.
Oct. 11. Do. Do................. 943 36 818 25
1888.
July 20. Do. Do................. 1,470 63 1,231 11
1889.
Oct. 15. Do. Do................. 1,105 23 856 77
1890.
Oct. 24. Do. Do................. 628 10 454 29
1891.
Aug. 2. Do. Do................. 1,034 24 708 67
1892.
Dec. 31. Do. Do................. 294 00 180 71
1893.
Dec. 27. Do. Do................. 439 48 248 89
1894.
Sept. 26. Do. Do.............. 691 33 364 87
1895.
Dec 31. Do. Do................ 439 69 204 30
1896.
Dec. 26. Do. Do................. 783 93 325 59
1897.
Dec. 31. Do. Do................. 646 56 235 86
1898.
Dec. 31. Do. Do................. 655 96 206 67
1899.
Dec. 2. Do. Do................. 208 45 55 97
1900.
July 12. Do. Do................. 773 90 184 56
1901.
Nov. 21. Do. Do................. 467 04 79 45
1902.
Dec. 17. Do. Do................. 459 01 53 51
1903.
Oct. 23. Do. Do................. 210 05 15 56
1904.
Sept. 22. Do. Do................. 905 32 25 66
1906.
Dec. 31. Do. Do................. 160 00
1909.
Dec. 31. Do. Do.......... 41 20
1912.
June 12. Do. Do................. 500 00
Balance of interest.... 16,019 73
Balance principal to debit of account...... 23,143 13
Interest of debit of accountant .............. 16,019 73
Property unaccounted for, per inventory.
See contra............ 6,441 00 $76,576 87 $39,897 25

Turning now again to the “Recapitulation of Recapitulations” as found by the trial judge, at page 196 of the transcript, and hereinbefore set out in full, we will amend it as follows:

*611Stated to be due the two heirs, transcript page 196 ....................................$53,934 11
Add in adjustment interest credited on debts paid since 1890... $ 1,615 85 Interest charged Mrs. A. T.
Barbin in account for maintenance .......................... 1,360 75
Do. Camille Modiste Guillebert 1,425 00 Error in addition, transcript, pages 159 to 162................. 18 83
Do. Do. 164 to 167................. 49 00 4,469 43 $58,403 54
Deduct in adjustment:
Interest on rents (less commissions) ............................$ 6,197 25
Interest from 1888 to 1904, inclusive ............................ 20,026 34
Error in addition, transcript, pages 171 to 177................. 101 07
Attorney’s fees, etc., allowed by judgment June 12, 1912, transcript, page 203, included in
amended account............... 500 00
Maintenance Mrs. A. T. Barbin, allowed by transcript, page 190 2,650 00
Camille M. Guillebert, do......... 3,000 00
Interest charged Mrs. A. T. Bar-bin on maintenance............. 1,360 75
Camille M. Guillebert, do........ 1,425 00 35,260 41 Balance due the two heirs in principal.... $23,143 13 Balance of interest due heirs............... 16,019 73
Total due heirs...........................$39,162 86
To be accounted for in inventory real estate ..................... 4,050 00
To-pledged unredeemed property 2,391 00 6,441 00 Total to be accounted for by tutrix.... $45,603 86
The following is a memorandum of the several amounts which bear interest, and the dates from which interest begins to run, in favor of the two heirs:
Mrs. A. T. Barbin:
Bearing interest from April 17, 1905 ..............................$11,395 97
Bearing interest from December 31, 1906 .......................... 80 00
Bearing interest from December 31, 1909 ........................... 20 60
Bearing interest' from June 12, 1912 .............................. 250 00
Her half of the interest in account ............................. 8,009 86 - $19,756 43
Camille Modiste Guillebert:
Bearing interest from April 17, 1905 .............................. $11,045 96
Do. from December 31, 1906...... 80 00
Bearing interest from December 31, 1909 ........................... 20 60
Do. from June 12, 1912............ 250 00
Her half of the interest in account ............................ 8,000 87 19,406 43 Total of judgment. $39,162 86

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended by reducing the judgment in favor of Mrs. Adele Constant Guillebert, wife of A. Tillou Barbin, and against her tutrix, Mrs. Marie Grenier Mayer, and her cotutor, Alfred J. Mayer, in solido, to the sum of $19,-756.43, with 5 per cent, interest on $11,395.97 from April 17, 1905; on $80 from December 31, 1906; on $20.60 from December 31, 1909; and on $250 from June 12, 1912.

And that said account be further amended by rendering judgment in favor of Camille Modestine Guillebert in the sum of $19,406.43, with 5 per cent, interest on $11,045.96, from April 17, 1905; on $80 from December 31, 1906; on $20.60 from, December 31, 1909; and on $250 from June 12, 1912.

And, as thus amended, said judgment is affirmed. Costs of appeal to be paid by appellee, and costs of the district court to be paid one-half by the succession and one-half by accountants.





Dissenting Opinion

PROVOSTY, J.

I dissent from this opinion in so far as against opponent; expressing no opinion as to the item of interest.